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Wow! Did You Know That There Were All of These Different Medical and Dental Examination and Specialty Boards out There?

Patricia's Photos 013By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Did you know there are many different medically-related examination and specialty boards out there screening applicants’ credentials and administering national examinations required for licensure? What is more, if an applicant is accused of some type of wrongdoing by that board (which may include allegations of “irregular behavior or conduct,” “cheating,” “compromising examination materials,” or other similar allegations) each has different procedures and appeals for handling investigations.


Types Of Medical Specialty Boards.

I have recently had to advise clients on or become involved in hearings or appeals for:

  • The Educational Commission for Foreign Medical Graduates (ECFMG);
  • The National Board of Osteopathic Medical Examiners (NBOME);
  • The National Board of Chiropractic Examiners (NBCE);
  • The National Board of Pediatric Medical Examiners (NBPME);
  • The National Board of Medical Examiners (NBME);
  • The Joint Commission on National Dental Examinations (JCNDE)
    (which administers the National Board Dental Examination (NBDE));
  • The National Association of Boards of Pharmacy (NABP);
  • The American Board of Internal Medicine; and the
  • American Board of Obstetrics and Gynecology (ABO+G).

These are just the recent ones and don’t count the regular medical specialty boards about which we routinely consult clients.


The Intricacies of These Types of Boards.

Some of the boards don’t even have hearing procedures or appeal procedures set forth in a written policy or handbook. This makes it somewhat challenging to dispute an adverse decision against a client.

Nevertheless, because we have had such broad experience with such different boards, we are able to synthesize and extrapolate from the experiences we have had to obtain favorable results for clients, even when we are called upon to deal with a board with which we have not previously dealt.


Comments?

Were you aware that such specific boards existed? Do you have any experience or personal insight with any of these boards? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


About the Author:
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1999-2015 The Health Law Firm. All rights reserved.

 

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Physician Argues Definition of “Peer” at Formal Administrative Hearing

peer reviewFACTS: The Agency for Health Care Administration (“AHCA”) is responsible for administering Florida’s Medicaid program and conducting investigations and audits of paid claims to ascertain if Medicaid providers have been overpaid. With regard to investigations of physicians, section 409.9131, Florida Statutes, provides that AHCA must have a “peer” evaluate Medicaid claims before the initiation of formal proceedings by AHCA to recover overpayments. Section 409.9131(2)(c) defines a “peer” as “a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice.” Section “109.9131(2)(a) deems a physician to be in “active practice” if he or she has “regularly provided medical care and treatment to patients within the past two years.”

Alfred Murciano, M.D., treats patients who are hospitalized in Level III neonatal intensive care units and pediatric intensive care units in Miami-Dade, Broward, and Palm Beach County hospitals. His practice is limited to pediatric infectious disease. He has been certified by the American Board of Pediatrics in two areas: General Pediatrics and Pediatric Infectious Diseases. AHCA initiated a review of Medicaid claims submitted by Dr. Murciano between September 1, 2008, and August 31, 2010, and referred those claims to Richard Keith O’Hern, M.D., for peer review. Dr. O’Hern practiced medicine for 37 years, and was engaged in a private general pediatric practice until he retired in December of 2012. During the course of his career, he was certified by the American Board of Pediatrics in General Pediatrics, completed a one-year infectious disease fellowship at the The University of Florida, and treated approximately 16,000 babies with infectious disease issues. However, he was never board certified in pediatric infectious diseases, and at the time he reviewed Dr. Murciano’s Medicaid claims, Dr. O’Hern would have been ineligible for board certification in pediatric infectious diseases. In addition, Dr. O’Hern would have been unable to treat Dr. Murciano’s hospitalized patients in Level III NICUs and PICUs.

After Dr. O’Hern’s review, AHCA issued a Final Agency Audit Report alleging Dr Murciano had been overpaid by $l,051.992.99, and that he was required to reimburse AHCA for the overpayment. In addition, AHCA stated it was seeking to impose a fine of $210,398.60.

OUTCOME: Dr. Murciano argued at the formal administrative hearing that Dr O’Hern was not a “peer” as that term is defined in section 409.9131(20)(c). The ALJ agreed and issued a Recommended Order on May 22, 2014, recommending that AHCA’s case be dismissed because it failed to satisfy a condition precedent to initiating formal proceedings. While recognizing that AHCA is not required to retain a reviewing physician with the exact credentials as the physician under review, the ALJ concluded Dr. O’Hern was not of the same specialty as Dr. Murciano.

On July 31, 2014, AHCA rendered a Partial Final Order rejecting the ALJ’s conclusion that Dr. O’Hern was not a “peer.” In the course of ruling that it has substantive jurisdiction over such conclusions and that its interpretation of section 409.9131(2)(c), Florida Statutes, is entitled to deference, AHCA stated that it interprets the statute “to mean that the peer must practice in the same area as Respondent, hold the same professional license as Respondent, and be in active practice like Respondent.” AHCA concluded that “Dr. O’Hern is indeed a ‘peer’ of Respondent under the Agency’s interpretation of Section 409.9131(2)(c), Florida Statutes, because he too has a Florida medical license, is a pediatrician and had an active practice at the time he reviewed Respondent’s records. That Dr. O’Hern did not hold the same certification as Respondent, or have a professional practice identical to Respondent in no way means he is not a ‘peer’ of Respondent.” AHCA’s rejection of the ALJ’s conclusion of law regarding Dr. O’Hern’s “peer” status caused AHCA to remand the case back to the ALJ to make the factual findings on the claimed overpayments that were not made in the Recommended Order because of the ALJ’s conclusion that Dr. O’Hern did not qualify as a “peer.”

On August 18, 2014, the ALJ issued an Order respectfully declining AHCA’s remand. AHCA then filed a Petition for writ of Mandamus in the First District Court of Appeal, asking the court to direct the ALA to accept the remand and to enter findings of fact and conclusions of law with regard to each overpayment claim. The court assigned case number 1D14-3836 to AHCA’s Petition, and the case is pending.
Source:

AHCA v. Alfred Murciano, M.D., DOAH Case No. 13-0795MPI (Recommended Order May 22, 2014), AHCA Rendition No. 14-687-FOF-MDO (Partial Final Order July 31, 2014)
About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 36, No. 2 (Dec. 2014), a publication of the Administrative Law Section of The Florida Bar.